Supreme Court set to go where members of Parliament fear to tread: The minefield of deciding when life begins

OTTAWA — Just weeks after Parliament debated a motion on when human life begins, the Supreme Court of Canada will hear an appeal that again considers the question of when a fetus is legally considered a human being.

The court has agreed to hear the case of Ivana Levkovic, who was originally charged with, but acquitted of, concealing the dead body of her child. Like a recently defeated private member’s motion by Conservative MP Stephen Woodworth, which sought to review a section of the criminal code declaring a fetus as human only at the moment of complete birth, the Levkovic case centres around the question of when a human life legally begins. Though dealing with a different part of the criminal code than the MP’s motion, the Levkovic case may have repercussions on Canadian reproductive law, where there are currently no limits on when a pregnancy can be terminated.

“The [Levkovic] case raises the issue, constitutionally as well as criminally, which is ‘is a child a person before birth?’ And if the life of the child is terminated before birth, is that a criminal offence,” said Eugene Meehan, an Ottawa lawyer with Supreme Advocacy LLP and an expert on the work of the Supreme Court of Canada. “There inevitably is a legal connection to abortion generally, but that’s not to suggest the Supreme Court of Canada may take that connection.”

The case will be heard Oct. 10. Ms. Levkovic was charged after a building superintendent found a badly decomposed human fetus in Ms. Levkovic’s recently vacated Mississauga, Ont. apartment. Ms. Levkovic later told police that she fell down at home, went into labour, then put the dead body of the baby girl in a plastic bag and left it on the balcony.

The way he dealt with it raises the issue – is it a criminal offence within section 243 to terminate the life of a child before that child is born?

A pathologist could not determine whether the baby died before the labour or afterward.

Ms. Levkovic was charged under Section 243 of the Criminal Code, which outlaws the concealing the body of a dead child regardless of whether the “child died before, during or after birth.”

But the word “child” is not defined in the Criminal Code, and the original trial judge could not come up with a clear definition for the term when a death occurs before birth, Mr. Meehan said. That judge decided that the words “child died … before birth” were “unconstitutionally vague.” In his ruling, he struck the word “before” from section 243 and acquitted Ms. Levkovic.

“The way he dealt with it raises the issue – is it a criminal offence within section 243 to terminate the life of a child before that child is born?” Meehan said.

An appeal court disagreed with the ruling and ordered a new trial. Ms. Levkovic then sought leave to appeal to the Supreme Court, which will hear the case.

The court could opt to offer a narrow ruling, Mr. Meehan said, dealing only with this specific case or with the specifics of Section 243 itself. But the justices could also deliver a broader decision, addressing whether a fetus in the uterus is a child or not, he said.

The Supreme Court deals with everything from A to Z — from abortion to zoning — and this year is proof of that increasing trend

That could be politically explosive as Canada has no current abortion law; the last one was struck down by the Supreme Court in 1988. Justice Bertha Wilson, who wrote the decision, left the issue of conditions or restrictions on abortion “to the informed judgment of the legislature.”

In addition to the Levkovic case, the court has agreed to hear other appeals centring around issues of life and death, including the case of a woman who abandoned her baby after giving birth in a store bathroom and the case of a critically ill man whose doctors want to withdraw life support. It has also agreed to hear the case of a botched circumcision, one of a judge who plagiarized a decision, and a number of class-action lawsuits.

“The Supreme Court deals with everything from A to Z — from abortion to zoning — and this year is proof of that increasing trend,” Mr. Meehan said.